STATE OF NEW JERSEY v. NESTOR TORRES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NESTOR TORRES,

Defendant-Appellant.

________________________________________________________________

January 28, 2014

Submitted November 13, 2013 Decided

Before Judges Espinosa and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-08-1429.

Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief).

GaetanoT. Gregory,Acting HudsonCounty Prosecutor,attorney forrespondent (BrianSchreyer, SpecialDeputy AttorneyGeneral/Acting AssistantProsecutor, onthe brief).

PER CURIAM

Defendant applied to the Pre-Trial Intervention (PTI) Program after he was charged with a single count of second-degree eluding, N.J.S.A. 2C:29-2(b). His application was rejected by both the PTI program and the prosecutor's office. He appeals from the trial court's order affirming the rejection. We affirm.

Before he applied to the PTI program, defendant entered a guilty plea to third-degree resisting arrest, N.J.S.A. 2C:29-2.1 He admitted that he was driving and failed to stop in response to police who had pulled up behind him and activated sirens.

The Criminal Division manager reviewed defendant's application in light of the criteria listed in Rule 3:28 and N.J.S.A. 2C:43-12(e) and recommended against defendant's admission into PTI, setting forth the following reasons:

The nature of the offense, 2C:43-12(e)(1):

In the present pending [case,] the defendant was operating his vehicle in such an unsafe manner that he drew the attention of police who then attempted to conduct a motor vehicle stop. The defendant did not comply with the officer's instructions, via sirens and emergency lights, to stop and continued driving in an unsafe manner until the officers terminated their pursuit. At the time the defendant's driver's license was suspended and he was not authorized to operate any vehicle.

The motivation and age of the defendant, 2C:43-12(e)(3):

A review of the defendant's driver's abstract indicates that he has habitually failed to appear to [] scheduled hearings and has not remitted payments in the agreed upon time frame or at all. Scheduled appearances and timely fine remittance are both requirements of the PTI program and the defendant's behavior would not result in successful completion.

The extent to which the [applicant's] crime constitutes part of a continuing pattern of anti-social behavior, 2C:43-12(e)(8):

At the time of the offense, the defendant's driver's license was suspended. A review of the defendant's driver's abstract indicates eighteen (18) years of offensive driving practices that have resulted in ten (10) suspensions. Additionally, the defendant has previously been convicted of the same offense on the municipal level. All together the defendant chooses not to adhere to the rules and regulations designed for the [safety] of drivers and padenin [sic] New Jersey, moreover, the defendant has demonstrated that when confronted by regulating authorities for his offensive behavior he will go to great [lengths] to avoid apprehension.

The Prosecutor's Office concurred with this recommendation. Defendant appealed from this decision to the Law Division, which affirmed the prosecutor's decision to deny defendant's application. Defendant was sentenced thereafter to two years probation.

In this appeal, defendant argues that the prosecutor's rejection of his application was an arbitrary, patent, and gross abuse of discretion that should be reversed. We disagree.

The burden assumed by defendant in challenging the rejection of his PTI application is a heavy one. He must prove "clearly and convincingly" that the prosecutor's decision was a "patent and gross abuse of his discretion." State v. Brooks, 175 N.J. 215, 225 (2002) (quoting State v. Leonardis, 73 N.J. 360, 382 (1977) (Leonardis II)).

Prosecutors are granted "wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." State v Negran, 178 N.J. 73, 82 (2003); State v. Nwobu, 139 N.J. 236, 246 (1995). The scope of judicial review of a prosecutor's decision to reject a defendant's application is severely limited. Nwobu, supra, 139 N.J. at 246. We afford the prosecutor's decision an enhanced level of deference. State v. Baynes, 148 N.J. 434, 443-44 (1997); State v. DeMarco, 107 N.J. 562, 566 (1987); State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993). "Judicial review is 'available to check only the most egregious examples of injustice and unfairness.'" DeMarco, supra, 107 N.J. at 566 (quoting Leonardis II, supra, 73 N.J. at 384).

To reverse, "[t]he court must find that the prosecutor based a decision on an inappropriate factor, failed to mention a relevant factor, or so inappropriately weighed the relevant factors that the decision amounts to a 'patent and gross abuse of discretion.'" State v. Caliguiri, 158 N.J. 28, 37 (1999) (quoting State v. Wallace, 146 N.J. 576, 584 (1996)). See also Negran, supra, 178 N.J. at 82-83; Brooks, supra, 175 N.J. at 225; Nwobu, supra, 139 N.J. at 246-47. In addition, to warrant judicial intervention, the prosecutor's consideration must amount to a "clear error in judgment" that "subvert[s] the goals underlying pretrial intervention." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 572 (2002); Caliguiri, supra, 158 N.J. at 37; State v. Bender, 80 N.J. 84, 93 (1979).

"A prosecutor's discretion in respect of a PTI application is not without its limits, however." Negran, supra, 178 N.J. at 82; Brooks, supra, 175 N.J. at 225. The prosecutor is required to evaluate the criteria set forth in N.J.S.A. 2C:43-12(e) and the Rule 3:28 Guidelines in determining whether an applicant should be admitted to PTI. Negran, supra, 178 N.J. at 80-81. As part of a determination that is "primarily individualistic in nature," id. at 80 (internal citation and quotation marks omitted), the prosecutor must consider an individual defendant's features that bear on his or her "'amenability to correction' and potential 'responsiveness to rehabilitation.'" State v. Watkins, 193 N.J. 507, 520 (2008) (quoting N.J.S.A. 2C:43-12(b)); see also State v. Mosner, 407 N.J. Super. 40, 55-56 (App. Div. 2009). A prosecutor is also "required to provide a criminal defendant with a statement of reasons justifying his or her PTI decision, and the statement of reasons must demonstrate that the prosecutor has carefully considered the facts in light of the relevant law." Wallace, supra, 146 N.J. at 584; see also Nwobu, supra, 139 N.J. at 248-49.

In this case, the prosecutor adopted the reasons set forth by the Criminal Division manager for recommending that defendant not be admitted to PTI. Although these reasons addressed only three of the seventeen factors identified in N.J.S.A. 2C:43-12(e), the State contends that its statement of reasons reflected its consideration of all factors relevant to the application. Defendant argues that the State misapplied the Rule 3:28 Guidelines, affording insufficient weight to his suitability for PTI, leading to "the wrong conclusion" on his application.

As a preliminary matter, we note that defendant was charged with an offense that created a rebuttable presumption of ineligibility for PTI. Guideline 3(i) states, regarding the assessment of the nature of the offense, "A defendant charged with a first or second degree offense . . . should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor." R. 3:28 (emphasis added). Pursuant to that Guideline, defendant was afforded the opportunity to present "any facts or materials demonstrating the applicant's amenability to the rehabilitative process, showing compelling reasons justifying the applicant's admission and establishing that a decision against enrollment would be arbitrary and unreasonable." Ibid.

Defendant has not, however, provided "compelling reasons" to justify his admission and show that the rejection of his application was arbitrary and unreasonable. Defendant contends that his suitability for PTI was evident from the fact that the sentencing court found two mitigating factors in sentencing him to a probationary term, i.e., that he had "no history of prior delinquency or criminal activity," N.J.S.A. 2C:44-1(b)(7), and that he was "particularly likely to respond affirmatively to probationary treatment." N.J.S.A. 2C:44-1(b)(10). These factors are far from persuasive proof that his rejection from PTI was unreasonable since they merely establish threshold requirements for eligibility for PTI.

He argues further that the State failed to weigh his amenability to rehabilitation against the nature of his offense, noting the State's failure to mention facts regarding his background, lack of criminal convictions, and employment history. However, defendant has identified no facts in his background or employment history that would compel a contrary result.

Defendant also criticized the factual bases for the findings that he lacked motivation and that his driving history constituted a continuing pattern of anti-social behavior. Defendant's driving privileges were suspended ten times. He minimizes his failure to respond to the history of infractions, stating, "there is no indication that he did anything other than fail to show up in court for traffic summonses or fail to pay his tickets on time 'or at all.'" This argument is unpersuasive. Although motor vehicle offenses "are not 'crimes' but rather only petty offenses," Negran supra, 178 N.J. at 83, the Supreme Court has concluded that

a driving history can have some limited relevance to a PTI application if there is a strong substantive and temporal relationship between the past motor vehicle offenses and the offense with which a PTI applicant has been charged. In such settings, a driving record could demonstrate that a defendant has engaged in a "pattern of anti-social behavior" as contemplated in N.J.S.A. 2C:43-12e(8).

[Id. at 77.]

In Negran, the Court found the State's reliance upon dated motor vehicle offenses that included a twelve-year-old violation for driving while intoxicated and a ten-year-old speeding violation lacked the requisite substantive and temporal relationship to demonstrate a pattern of anti-social behavior. Id. at 85. However, here, defendant acknowledges "there appears to be some relevance between" his driving infractions and the instant offense. Moreover, although defendant characterizes the instant offense as "relatively minor," defendant was driving while his privileges were suspended and failed to respond to police instructions, sirens, and emergency lights. These facts further support the conclusion that defendant's history manifests a pattern of anti-social behavior and failure to conform to legal requirements.

In summary, defendant has failed to show clearly and convincingly that the prosecutor's rejection of his PTI application was arbitrary and unreasonable or that there were compelling reasons for his admission into PTI.

1 Although defendant's application was made more than twenty-eight days following indictment contrary to Guideline 6, R. 3:28, the trial court entered an order that permitted defendant to file an application out of time.